Pantall v. Dickey , 123 Pa. 431 ( 1889 )

OPINION,

Justice Gbeen:

the justice in this case shows that it was an action of trespass against two nonresident defendants who lived in this commonwealth, but out of the county of Allegheny where the action was brought. The transcript also shows that the summons was issued on June 12th, returnable on June 18,1885. The act of July 12, 1842, § 26, P. L. 345, provides as follows: “ Whenever by the provisions of the 24th section of this act no capias can issue and the defendant shall reside out of the county, he shall be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein.” The language of the section is peremptory, commanding that the defendant shall be proceeded against bjr summons returnable not less than two, nor more than four days from its date. There were six days intervening between the issue and the return of the writ in this case, and the act. was therefore clearly and palpably transgressed. was no lawful writ there was no jurisdiction of the alderman to entertain the case, and hence he could render no valid judgment. Of course, the judgment could have been and would have been reversed upon certiorari. But the judgment being void for want of jurisdiction to enter it, it matters not how, or in what mode, or at what time the objection on that ground is brought to the attention of a supervising court. Being void, it has no efficacy at any time. The defendant can afford to disregard it until an effort is made to enforce it. In this case a transcript was entered in the Common Pleas and a writ of execution issued. Then the defendants moved to strike off the judgment, and one of the reasons assigned was the want of jurisdiction in the alderman. It was a valid reason, the facts appeared upon the record, and they were fatal to the judgment. We have frequently held that a judgment which is void upon its face may be stricken off on motion: Allen v. Krips, 119 Pa. 1, and cases there cited.

Judgment judgment in the court below is made absolute.